Ante-Bellum North Carolina: A Social History:
Electronic Edition.

Johnson, Guion Griffis, 1900- 1989

CHAPTER XXI THE COURT SYSTEM

CHAPTER XXI THE COURT SYSTEM

AT THE SAME time that the Legislature was fettering the free Negro, attempting to tie him more securely to his native locality and thus lessen the possibility of his becoming a corrupting influence to the slave population, there was underway a profound movement to free the judicial system from blind adherence to the common law. The movement in North Carolina, beginning as early as 1782, was a part of the general movement for humanitarian reform which was sweeping the western hemisphere. In England, Jeremy Bentham led the movement for judiciary reform; in the United States, Edward Livingstone of Louisiana and David Dudley Field of New York. 1

[1 The reforms which New York adopted in 1848 under Field's influence were the bases for the North Carolina reforms of 1868. See A. C. McIntosh, North Carolina Practice and Procedure in Civil Cases, p. 78.]

[2 Cf. W. J. Adams, "Evolution of Law in North Carolina," North Carolina Law Review, II, 133-45; Walter Clark, Address on Reform in Law and Legal Procedure before the North Carolina Bar Association, 1914; Lindsay Patterson, North Carolina's Contribution to the Law, an address before the Law School of the University of Indiana, 1906; R. W. Winston, "A Century of Law in North Carolina," 176 N. C. Reports.]

Agitated throughout the ante-bellum period in the press, on the oratorical platform, in the Legislature, on the Bench, and at the Bar, reform, nevertheless, did not make any fundamental change in the judicial system until the upheaval of Civil War and Reconstruction framed the Constitution of 1868.

Court week in North Carolina was a bustle of activity, as has already been pointed out in the discussion of the ante-bellum town. 3

[3 Supra, pp. 148-49.]

It brought to town judges, litigants, witnesses, men who hoped to serve as jurors, and lawyers who regularly made the round of courts as well as numerous vendors, entertainers, and spectators. This was the time when the political parties held their county and district meetings, when temperance and Bible societies organized or had their annual gatherings, when agricultural societies held their fairs. In 1805 the Pasquotank County Court

Page 614

cleared the courtyard in Elizabeth City of vendors' booths because "the clamour and noise of company interrupts the business of the Court," but the clamor and noise of court week has continued more or less throughout the State to this day.

In 1853 when Augustus S. Merrimon, then a young lawyer destined to become chief justice of the Supreme Court, attended the Madison County Court, he found a great crowd of people in attendance. "Little business has been done today," he wrote. "Yesterday the Judge ordered the whisky wagons to be removed, and thus we have not been so much disturbed with drunkeness as yesterday. As soon, however, as court adjourned this evening the whole crowd hurried to the Court House Door--and such a drunken crowd, I have seldom seen." And again in January, 1854, he wrote of the Yancey County Court, "There has been quite a crowd in attendance today and they have tried to see how badly they could behave themselves. . . . At different times I noticed groups about over the Court Yard and in the center stood a large gauky looking fellow with a fiddle and he would saw off some silly ditty [.] two or three drunken fools would dance to the same." 4

Inside the courtroom, there was usually more decorum, although Merrimon complained of the constant confusion, especially of the Yancey County Court in January, 1854: "There is during the Session of the court a continual fuss, a continual talking, so that the Court, the Council nor the jury cannot hear the testimony. . . . A portion of the time, while suits were trying the whole court were off of the bench." 5

[5 Ibid., pp. 328, 329-30.]

It is probable that there was a certain amount of confusion in most of the county courts which were generally presided over by men untrained to law, but the judges of the superior courts were usually men of personal reserve, quick to punish any infringement upon the dignity or privilege of the court. 6

The courtroom always reeked of tobacco juice, whisky, and sweating bodies, more especially on a winter day when the room was closed, the rusty stove or open fireplace belching smoke, and the air fetid. The fastidious young Merrimon was constantly

Page 615

annoyed on his circuit of the winter county courts in Western North Carolina with dirty men and foul odors. ". . . a Client of mine," he wrote on one occasion, "was anxious to inform me of some facts in the Court House and put his head down to my ear and the miserable fellows breath affects my ear till yet. His mouth stunk with filth." On another occasion, after he had done considerable business in his office with "the unterrified democracy," he declared that the floor looked like a hog pen, concluding ruefully, "most men of the lower classes care nothing for decency." 7

[7 Newsome, "The A. S. Merrimon Journal," NCHR, VIII, 324, 329.]

Most of the old counties and some of the new ones had substantial brick or stone courthouses at the opening of the nineteenth century, with judge's bench, jury rail, and clerk's table; but some of the western counties, even in the last decade of the ante-bellum period, made scanty provision for their courts. In 1853 Merrimon found the Waynesville Courthouse to be "a verry bad one." The Madison County Court opened "without seats fit to sit on and without any place to do business" and the Jackson County Court held its meeting in the middle of December in an open house with no floor. 8

[8 Ibid., pp. 319, 310, 318.]

The court system in North Carolina during the colonial period was inefficient, subject to frequent change, and a question of controversy between the Crown and the local Assembly. 9

The lowest provincial court, also the oldest, was the magistrate's court held by one or two magistrates, having jurisdiction over petty offenses and actions for the recovery of property worth less than forty shillings. Next above was the precinct or county court which was held quarterly in each county by three justices of the peace, having jurisdiction over litigations involving not more than fifty pounds and over all offenses of a minor nature except forgery and perjury. The court also exercised such administrative duties as appointing constables and road overseers, creating road districts, registering marks for cattle, and granting franchises for mill sites.

Page 616

The present system of county commissioners is based largely upon this class of duties exercised by the colonial county court.

The appellate court of the Colony, the forerunner of the superior court, was established before the precinct courts and gradually yielded some of its powers to them. Presided over at first by the governor and Council, this court was called the General Court and came to be presided over by a chief justice and several associates. It usually sat three times a year, having jurisdiction as a court of king's bench, common pleas, and exchequer and as a court of oyer, terminer, and general jail delivery. An attorney general represented the Crown and indictments were brought in the name of the Sovereign. The General Court also exercised administrative duties, the most important of which was the apportionment of taxes by direction of the General Assembly. The quarrel between Crown and General Assembly over the supervision and jurisdiction of the General Court was one of the chief causes which led to the overthrow of the royal government in North Carolina.

The Colony also had a chancery court and a vice-admiralty court. The governor and Council held the chancery court, hearing appeals from the General Court, trying public officials for misconduct in office, probating wills, and examining accounts of administrators and executors. The vice-admiralty court was directly responsible to the admiralty court of England which appointed the judge and subordinate officials.

The Constitution of 1776 and two legislative acts of 1777 erected the structure of the ante-bellum courts upon the basis of the colonial system. The Constitution authorized the General Assembly to "appoint judges of the Supreme Court of Law and Equity, Judges of Admiralty, and an Attorney-General, who shall be commissioned by the Governor, and hold their offices during good behaviour." It also specified that the judges should have "adequate salaries" and that they should not be eligible to membership in the General Assembly.

THE MAGISTRATE'S COURT

As in colonial times, the magistrate's court stood at the bottom of the structure in the ante-bellum court system. The court, presided over by a justice of the peace, on some occasions two justices, met informally whenever the occasion arose. In the towns,

Page 617

the justice might hold this court in the courthouse, the town hall, or any other convenient public building; but at the crossroads and in the country, the justice might have court at a store, a merchant mill, or in his own home. Taliaferro relates in his Fisher's River Scenes that 'Squire Freeman of Surry County held court in the kitchen because his wife did not want the floors of her house "begaumed with tobacco-juice" or scarred from the nails in the litigants' home-made shoes. 10

[10 P. 172.]

A justice of the peace received his commission from the governor, having been recommended to the office by the General Assembly, in actual practice by the members of the Assembly from his county. He was sworn into office by the county court and continued to serve as long as he resided within his county unless he tendered his resignation to the Legislature. He performed his duties without other remuneration than exemption from work on the public roads. The justice derived his powers from various legislative acts. In general, he had full power to maintain, keep, and preserve the peace; to solemnize the rites of matrimony, and to issue all processes necessary to the performance of his duties. His authority to keep the peace and his duties as a civil court covered a wide range of important functions.

The act of 1777 gave a justice of the peace "full power and authority, as amply and fully to all intents and purposes as any justice of the peace . . . had or ought to have had by virtue of any act or Assembly . . . under the late government." It was not until 1794 that the Assembly limited the magistrate's jurisdiction in civil cases to all debts and demands not exceeding twenty pounds, giving him authority to pronounce judgment and award process of execution against "the goods, chattels, land and tenements, or body of the party cast." In 1802 his jurisdiction was increased to £25, in 1803 to £30, and at the close of the period in 1860 he had jurisdiction over civil actions not exceeding $100. 11

[11 The Revised Code of 1855 summarized these actions as follows: (1) All debts and demands due on bonds, notes or liquidated accounts stated in writing and signed by the party owning them and all balances due on them where the principal does not exceed one hundred dollars; (2) all judgments rendered on such debts and demands; (3) all debts and demands not exceeding sixty dollars due on any parol agreement or for goods, wares, and merchandise or for work or labor done; (4) all judgments rendered on such parol agreements; and (5) all forfeitures and penalties not exceeding one hundred dollars (Chap. LXII, sec. 6).]

Page 618

Under this jurisdiction, a justice had cognizance of a large number and variety of forfeitures and penalties. In commenting upon this phase of a magistrate's jurisdiction, Edward Cantwell wrote in his North Carolina Magistrate in 1856: ". . . one cannot help being struck with the peculiar severity and efficiency of our North Carolina law, which has made nearly all crimes except perhaps the highest and misdemeanors, subject to a three-fold punishment namely, indictment, an action for damages at the suit of the party grieved, and finally, a pecuniary penalty recoverable in a summary manner, before a single magistrate." 12

[12 P. 143.]

Some of the penalties over which the magistrate had exclusive jurisdiction were: the forfeiture of $20 by a freeholder neglecting to notify the county ranger of taking up a stray; forfeiture of double the amount lent by persons charging greater interest than 6 per cent; forfeiture of $1 for violation of the Sabbath; forfeiture of $100 by a person fraudulently giving a slave permission in writing to sell, trade, or traffic; forfeiture of $40 by an owner hiring a slave his own time; forfeiture of $2 by a free Negro entertaining a slave at his house.

Besides the general powers and the civil jurisdiction already referred to, a justice of the peace possessed an important sphere of power and duty in the administration of the criminal law. The necessity of providing by law for some means of detaining offenders and suspected felons during the recess of the grand jury, the customs of the people derived from the common law, and especially the existence of slavery seemed to justify the Legislature's granting such vast power to the magistrate's court. The criminal jurisdiction of this court consisted mainly in (1) the summary trial and punishment of slaves for trivial offenses; (2) the arrest of vagrants, the destruction of gambling tables, and the seizure of money staked or used in gaming; and (3) the examination and commitment of felons and suspected persons and the collection of testimony for their conviction.

The trivial offenses committed by a slave, over which a single justice had cognizance, have already been enumerated in the discussion of the slave code. Besides these inferior offenses, a justice of the peace might try all other misdemeanors and crimes committed by slaves which, if done by a white person, would not

Page 619

be punishable by loss of life or limb. It was in connection with this sphere of duty that the justice had his greatest power, for in this instance, he had "the power to make and declare the law." Chief Justice Nash in the case of State v. Bill, defending this jurisdiction of the magistrate's court, said: "Justice is speedily and cheaply administered, and the peace and good order of society preserved. . . . Standing in the relative position which the white man and the slave occupy, there are and must be a great variety of the acts of the latter which cannot and ought not to be suffered, and are calculated to exasperate. . . . What acts in a slave towards a white person would amount to insolence it is manifestly impossible to define--it may consist in a look, the pointing of a finger, a refusal or neglect to step out of the way when a white man is seen to approach. But each of such acts violates the rules of propriety, and if tolerated would destroy that subordination upon which our social system rests." The punishment of such offenses, therefore, can nowhere be placed with such propriety as with the justices of the peace, and much in the enforcement of the law must be left to their sound discretion. 13

[13 S. v. Bill, 35 N. C., 348-50. See also S. v. Tom, 44 N. C., 218.]

In all such cases the extent of punishment which a justice of the peace might inflict was whipping not to exceed thirty-nine lashes. A justice had full power to issue summons for witnesses and to compel their attendance; and upon the trial it was the duty of the master to appear in defense of the slave. In all such trials, the justice had the privilege of calling in as many other justices as he thought proper to sit in judgment.

The Legislature also vested certain other important powers in the justices of the peace. In some cases these powers were to be exercised by one justice, in others by two, by three, or by seven. For instance, a single justice of the peace might order apprentices, examine the mother of bastard children, take evidence for the court of equity, administer oaths, remove prisoners, take the lists of revenue, and change private roads. 14

[14 Cantwell, The North Carolina Magistrate, pp. 279-80.]

The powers which two justices of the peace might exercise were: to admit patients to the State Asylum for the insane, to discharge insolvent debtors who had no visible estate; to prove the revenue lists in certain cases; and to outlaw runaway slaves in certain cases. 15

[15 Ibid., p. 366.]

Three or more justices of the peace might appoint special administrators, coroners, inspectors,

Page 620

spectors, and revenue listers; order out the militia in cases where outlawed or runaway Negroes were committing depredations or where it was necessary to guard a jail; and establish regulations for quarantine. 16

[16 Ibid., p. 377.]

The only power which was vested in seven justices was that of ordering out the militia in case of insurrection in North Carolina or an adjoining state or in case of invasion.

THE COUNTY COURT

Like the magistrate's court, the county court, which was next above it, had many administrative duties as well as the duties of a regular law court. The justices of the peace presided over the county court which sat quarterly at times appointed by legislative act. The justices had the privilege of appointing five of their number to hold the courts for a year, any three of whom had power to act. Each court had authority to appoint a chairman who should hold his office until a successor was appointed. The justices might be paid out of the county funds from $1 to $3 a day for their work. 17

[17 Revised Statutes, 1837, Vol. 1, Chap. XXXI, sec. 6.]

In actual practice, a county court might have two or three different chairmen during one sitting of court and might have a change of justices almost every day. It was this fact which led to one of the chief criticisms of the county court made during the ante-bellum period, as will be pointed out later.

The county court sat from one to six days, and all business not completed in that time was continued to the next succeeding term. Even the six-day term was often insufficient to dispose of all the business. In 1858 the Leisure Hour wrote of the Oxford County Court: "Although there were upwards of one hundred fifty cases on the docket, we understand that very little business was transacted. We dare say, that the fact that a vast amount of business was before the officials, to be performed, had a paralyzing effect upon their energies, and hence the week was frittered away, and scarcely anything done." The next week the Leisure Hour, apologizing for its hasty remarks, said, "There were 400 cases on docket and 200 taken off." 18

[18 May 13, May 20.]

The justices of the county court had authority to summon both a grand jury and petit juries for each sitting of the court, but they had the privilege of dispensing with the attendance of a jury at two

Page 621

terms if the business of court did not require it. This practice led to the custom followed by some county courts of attending to administrative matters at two terms and to jury cases at the other two terms so that a case on appeal from a magistrate's court might have to wait six or even twelve months for trial before a jury in the county court.

The civil jurisdiction of the county court extended to suits for the imposition of penalties to the amount of $100 and upwards incurred by violation of the penal statutes and to suits for dower, partition, filial portions, legacies, and distributive shares of intestates' estates. As a part of its civil jurisdiction, the county court also sat at the first term of the year as an orphans' court, 19

[19 See also supra, pp. 256-57.]

proving and recording guardians' bonds, securing and managing the estate of orphans for whom no guardian could be found, authorizing the sale of perishable estates, appointing yearly sums for education and support, and in some cases disciplining unruly orphans. The orphans' court had concurrent jurisdiction with the superior court in appointing and removing guardians and in taking guardians' bonds. The work of the orphans' court often consumed much time, for some courts investigated more than a hundred accounts each year. In 1833, for instance, the Pasquotank County Court heard and proved 176 orphans' accounts and the Edgecombe County Court proved yearly between 1831 and 1857 from 110 to 163 accounts. 20

Nor were the courts always able to complete the business of the orphans' courts at the first term of each year. Guardians were often lax and the court frequently had to drag out the business through the year. The county court also appointed guardians for idiots and lunatics.

The criminal jurisdiction of the county court extended to all cases in which the judgment upon conviction did not extend to death or dismemberment. 21

[21 Misdemeanors under the Revised Code, 1855. Some of these offenses, as will be pointed out later, were earlier considered felonies and some, such as conducting a lottery, were earlier not considered offenses.]

This authority under the Revised Code of 1855 gave the county court jurisdiction over at least sixty-two different misdemeanors, including such offenses as petit larceny; assault and battery; allowing slaves of others to meet without permission;

Page 622

altering marks on livestock or timber; betting at cards at a public house of entertainment; gaming; retailing spirituous liquors without a license; the first offense in inciting slaves to insurrection by spoken words; and conducting a lottery.

[22 See Cantwell, The Practice of Law in North Carolina, Bk. I; Bk. II, Chap. IV-VI. Some of these powers were performed by a majority of the county court, by seven justices of the county court, and by the special court of three justices which composed the county court.]

of the county court extended over a variety of subjects, the effects of which usually influenced the lives of large groups. The Legislature delegated to the county court the power to fill by appointment certain offices, many of which have later become elective. The county court appointed overseers of the roads; wardens of the poor; county superintendents of common schools; patrolmen; the county register, ranger, coroner, treasurer, trustee, and solicitor; auctioneers; entry takers and surveyors; inspectors; the treasurer of public buildings; and certain commissioners and committees. The court also proved the qualifications and administered oaths of office to justices of the peace, notaries public, and constables; issued license to peddlers and retailers of spirituous liquor; bound out apprentices and took bonds in cases of free Negro children; heard petitions and granted license for erection of public mills and toll bridges; ordered sale of runaway slaves in certain cases; emancipated slaves until jurisdiction in such cases was removed to the superior court; levied the county taxes; exempted persons from payment of poll tax in certain cases; and kept the courthouse, the jail, and stocks in repair.

THE SUPERIOR COURT

The superior court, like the magistrate's court and the county court, had civil and criminal jurisdiction and administrative duties. The act of 1777 created a superior court of three judges, divided the State into six districts, and provided for two courts a year in each of the district towns: Wilmington, New Bern, Edenton, Halifax, Hillsboro, and Salisbury. 23

[23 For a list of the judicial districts during the ante-bellum period see D. L. Corbitt, "Judicial Districts of North Carolina, 1746-1934," NCHR, XII, 50-57.]

In 1782 the Legislature added the Morgan District; in 1787, the Fayetteville District; and, in 1790, divided all circuits in two ridings, an eastern and western. The courts were presided over by judges who were

Page 623

elected by joint ballot of both Houses of the Legislature and held office "during good behaviour." Until 1806, when one judge was made competent in all cases, two judges were required for demurrers, cases agreed, special verdicts, bills of exception, and motions in arrest of judgment.

The movement for reform, begun in 1782 with the erection of the Morgan district, became so insistent by 1806 that the Legislature created a superior court for each county in the State. In 1790 the Legislature had added a superior court judge and a solicitor general whose powers were identical with those of the attorney general. The act of 1806 increased the number of judges to six, added four additional solicitors, and changed the number of ridings to six instead of two, as under the act of 1790. No judge was to ride the same circuit twice in succession. 24

[24 Until 1856 the judges met and allotted the ridings, but the Revised Code of 1855 required the judges to hold the districts in regular rotation.]

An act of 1836-1837 created another district and added another judge and the Revised Code of 1855 slightly rearranged the districts without increasing the number.

The term of court was usually six days unless a county obtained by legislative act a special court or a continuation of the regular term; as, for instance, Anson County Superior Court which was authorized to continue two weeks every fall term whenever the business of the court required it. In 1844, however, the Legislature delegated to the judge on the bench authority to announce a special term of court "whenever the civil business . . . shall become too great to be done at the regular term." 25

[25 Revised Code, 1855, Chap. XXXI, sec. 22.]

At the end of the sixth day, a superior court automatically came to a close regardless of whether a case was on trial, but in 1830 the Legislature authorized a judge to continue the term of court when a trial in a capital case had been started and the jury had not returned a verdict. In 1854 the Legislature permitted the judge to extend the term in case of any jury trial in order to receive the verdict of the jury.

The act of 1777 gave the superior court original jurisdiction in civil suits for any debt or demand of £100 or upwards when the parties lived in the same district and for £50 or upwards when the parties lived in different districts. In 1808, however, the Legislature

Page 624

enlarged the civil jurisdiction of the superior court by giving it concurrent jurisdiction with the county court in all civil actions. 26

[26 Sessional Laws, 1808, Chap. I. This act added a proviso, later removed, that "no original writ for debt shall be issued by any clerk of the superior court against any person residing out of the county of said clerk, for any sum under fifty pounds."]

In 1782 the Legislature also gave the superior court power to sit as a court of equity possessed of "all the powers and authorities within the same, that the court of chancery, which was formerly held in this State under the colonial government, used and exercised, and that are properly and rightfully incident to such a court. . . ." 27

[27 Revised Code, 1855, Chap. XXXII, sec. I.]

An act of the following year further defined the duties of the equity court by declaring that "in all cases of disputes in matters of administration, testaments and trusts between executors, administrators, and guardians, and their wards and minors, in the settlement of accounts, and trusts arising from the depreciation of the currency and incidents growing out of the times, the parties may form a full and perfect state of the case on both sides, at their joint expence, which case shall be submitted to the determination of the judges of the court of equity, who are hereby authorised . . . to determine the same according to equity and good conscience." 28

[28 John Haywood, A Manual of the Laws of North Carolina, p. 209.]

This act and numerous ones passed thereafter further defined the rules and procedure of court, and an act of 1792 set aside the last three days of the superior court term as a time for disposing of the business on the equity docket. From 1782 until the close of the ante-bellum period, a movement was frequently underway in the Legislature to create equity courts distinct from the superior courts; but the Legislature steadfastly refused to take equity powers from the superior court judges. The practice of giving both law and equity powers to judges had been adopted by the federal court system and continues there to this day.

The act of 1777 gave the superior court criminal jurisdiction in all cases except indictments for assault and battery, petit larceny, and slander, but an act of 1807 extended the jurisdiction of the superior court by giving it concurrent jurisdiction with the county court of "all pleas and prosecutions of the State, and of all actions of slander." This court also had original jurisdiction of all felonies.

The judge of the court of equity had authority to appoint the clerk and master in equity who held office for four years. The judge also had power to appoint a clerk of the superior court and a solicitor in case either of these offices fell vacant during an unexpired term. The judge appointed counsel for persons suing as paupers and had concurrent jurisdiction with the county court in the appointment of guardians for infants and idiots. The court heard the petition and issued the order for emancipation of slaves more than fifty years old in cases where the master could prove meritorious service. In 1835 an amendment to the Constitution removed the right of hearing petitions for divorce and alimony from the Legislature and conferred it upon the superior courts of law and equity. The court also exercised a few other legislative powers of a minor nature such as receiving petition and granting license for the erection of a public mill when the stream formed the boundary line between two counties.

THE SUPREME COURT

In 1787 a superior court in North Carolina had declared in the case of Bayard v. Singleton the power of the court to set aside an act of the Legislature as unconstitutional. This famous case was the first reported "in which an act of a Legislature was declared void because contrary to a written constitution," but the State was slow to create a court of final jurisdiction. 30

[30 Battle, "History of the Supreme Court," 103 N. C., 309-42; Walter Clark, "The Supreme Court of North Carolina," The Green Bag, IV, 547-91, and "History of the Superior and Supreme Courts of North Carolina," North Carolina Booklet, XVIII, 79-103.]

As a result of the discovery of a gigantic fraud in the administration of the Revolutionary soldiers' land bounties, the Legislature in 1799 directed the superior court judges to sit twice a year in 1800 and 1801 in Raleigh to hear the fraud cases and to review cases on appeal from the superior courts. In 1801 the Legislature extended the court for another two years, named it the Court of Conference, and provided that "no attorney should be allowed to speak or admitted as counsel." An act of 1804 required the court to file written opinions; an act of 1805 changed the name to the

Page 626

Supreme Court; and an act of 1810 authorized the judges to elect a chief justice from among their number.

The creation of a superior court for each county in the State under the act of 1806 had increased the work of the judges to such an extent that it became more and more burdensome for these same men to sit twice a year as a supreme court. Archibald D. Murphey had gone to the Legislature of 1817 determined "to get a Supreme Court with three Judges--and if we fail this, to add two more Judicial Districts." 31

[31 Papers of Archibald D. Murphey, I, 99.]

To this same Legislature Governor Miller sent a message calling attention to the necessity of selecting separate judges who would sit as the Supreme Court. 32

[32 House Journal, November 18, 1817, pp. 6-7.]

On Murphey's motion Governor Miller's message was referred to a joint committee of the Legislature with Bartlett Yancey of the Senate as chairman. On November 26 Yancey reported a bill establishing a Supreme Court of three judges which, in addition to being a court of final resort, should also have jurisdiction over pending equity cases. 33

[33 Senate Journal, November 26, 1818, pp. 19-21.]

Yancey's bill was defeated but the following year William Gaston, later an illustrious member of the Supreme Court, introduced a similar bill and carried it through to victory. The act of 1818 called for the appointment of three judges whose duty it should be to hear cases on appeal from the superior and equity courts; to have original jurisdiction in repealing letters patent; to have power to issue writs; to prescribe rules of practice for the superior courts; to examine and license attorneys at law; and to appoint a chief justice, a clerk, and a reporter. 34

[34 Under the Revised Code of 1855, Chap. XXXIII, secs. 22, 24, the Court also appointed an attorney general in certain cases and a marshal.]

The first Supreme Court under this act was composed of John Louis Taylor as chief justice, who had also held this position under the act of 1810, and John Hall and Leonard Henderson as associate justices. Upon Chief Justice Taylor's death, the court elected Henderson to that office in 1829 and the Legislature added Thomas Ruffin to the bench. Upon Henderson's death in 1833, the Legislature elected Gaston to the bench and Ruffin became chief justice, serving until his resignation in 1852. Frederick Nash, who had gone to the bench in 1844 at Judge Gaston's death, succeeded Ruffin as chief justice and in 1858 Richmond M. Pearson succeeded Nash.

Page 627

THE MOVEMENT FOR REFORM

"We have had in this State few changes in our judicial system--perhaps fewer than in any of our sister States," wrote "Gaston" in an address to the newly elected members of the General Assembly in 1854. "And however this may argue stability in our courts, its wisdom and policy may be a matter of doubt." 35

The movement for reform made itself felt early in the history of the State. The first important victory came in 1782 with the erection of the Morgan district superior court and the creation of equity courts. The first victory for reform of the new century was the continuation of the life of the Court of Conference. The century had opened, however, with a movement underway for an increase in the number of superior courts. A petition in 1802 from Johnston County complained of "the Extensiveness of our present Superior Court District" and the "very great inconvenience of attending Courts so remotely situated," saying, "Instead of being Tribunals of Justice to relieve the oppressed these distant Courts become Engines of oppression in the hands of the Opulent." 36

[36 MS in Legislative Papers, 1802.]

The movement for reform continued throughout the years. Sometimes it was virulent and after a few years of agitation won victories, but more often it was somnolent, sometimes even apparently dead.

Opposed to reform was the conservative spirit of the courts which was blindly attached to precedent. The court system had been adapted from the English during colonial times; it had been sanctioned by the Revolutionary fathers; "for that reason it must be good and wholesome." "The Old Farmer is not fond of innovations," wrote a reformer in 1805. He is so busily engaged in making corn, tobacco, and cotton that he does not realize that a court "system calculated to answer all the purposes of an infant state of society, is altogether unsuitable for a populous, wealthy, mercantile and improving people, whose minds are expanding, whose wants are increasing, and whose relative situations are daily changing." 37

[37 Raleigh Register, July 21, 1805.]

The farmers were not the only class opposed to reform. Frequently the lawyers and the district judges were in opposition, as in the case of the act of 1806 which gave every county a superior court. Sometimes even the reformers who might be counted on for support in minor changes were themselves opposed

Page 628

to a particular reform because they did not think it would accomplish the object in view. This attitude was especially noticeable in the movement for a penitentiary. Perhaps the great deterrent of reform was the spirit of economy which prevailed in every phase of public life throughout the period. It prevented the establishment of a supreme court presided over by separate judges for forty-two years after its authorization by the State Constitution; it prevented until 1806 a separate superior court for every county; and it prevented any significant amelioration of the criminal code throughout the ante-bellum period.

The office of justice of the peace engaged the attention of the reformers throughout the period. "That there are serious defects in the Judicial System of this State, is too obvious to have escaped the observation of the most careless," wrote Edward J. Hale in the Carolina Observer of May 3, 1826. "What is a greater mockery of Justice, for instance, than the dependence which the laws place in the feeble and unwilling hands of our justices of peace? They seldom know their duties, and still more seldom perform them. And this is no wonder. Taken from among the people, without regard to legal knowledge, and sometimes even without regard to common sense and common honesty, selected by two or three individuals, sometimes according as caprice or interest may dictate, receiving no emolument, and precious little honor, for their services, how can we expect to fill this important, though humble office with competent men? or where is the incitement of a faithful discharge of its duties? Only a few days since, we saw a poor woman who said her house had been robbed of everything, that she had applied to several magistrates, and could not even obtain a search warrant. . . . We believe that such cases of hardship occur frequently."

Although Edward J. Hale was not often given to exaggeration, neither the Legislature nor the Supreme Court agreed with him that justices of the peace were generally unfit for the office they held. The Legislature gradually extended the jurisdiction of justices and the Supreme Court usually upheld the extension. An eminent jurist, writing in the North Carolina Standard in 1845, said, "In imitation of recent English examples we would even enlarge the jurisdiction of a Justice and make it final (by amendment of the Constitution if necessary) in all very petty cases of

Page 629

contract, of assault and battery, of words spoken, and of injury to personal property. To make the gift of jurisdiction effectual we would deprive suitors in all such cases in the higher courts of costs where the judgment did not exceed the specified sum (e. g. $30). At present courts and juries are frequently occupied for hours, to the exclusion of more important business, and at great expense to somebody, with most contemptible suits." 38

[38 An article entitled "The Administration of Justice," in the issue of September 17.]

As the writer pointed out, a great many cases appearing before a justice were of an extremely petty nature and not really contested. Ridiculing this aspect of the magistrate's court, Taliaferro wrote in his Fisher's River Scenes of one John Senter of Surry County who openly boasted of his fondness of "being in law." he once sued and received judgment against Ben Carson on the following items:

Although the law prescribed specific penalties for nonperformance of duty and abuse of jurisdiction, the masses felt that the 'squire was above the law. In cases of glaring inefficiency or corruption, however, there could usually be found someone in the 'squire's neighborhood daring enough to bring him to justice. In 1808 a petition signed by fifty citizens of Bladen County complained of "the privations and injuries" incident to the appointment of one Allen Hall as justice of the peace: "Your petitioners if present could prove to your honorable body; that he has been charged with many acts of felony, to which the records of their court bears testimony;--That he lives now, and has done for many years in adultery; That he is an officer of the peace, and bound by his oath to preserve it; that not withstanding he is generally the first in all public meetings to break it; That he has given many false judgements injurious to the good citizens of his neighbourhood, which he refuses to rectify on being informed thereof; plainly indicating thereby, that 'feeling power, he forgets right.'" 40

[40 MS in Legislative Papers, 1808: petition signed by David L. White and others.]

Occasionally the county court records bear testimony that justices were brought to law. For example, the Orange

Page 630

County Court ordered at its February term, 1805, "that William Shepperd be fined the sum of £5 for swearing on the Bench while exercising the office of a Justice of the Peace."

Despite the provisions which the law made for holding a justice of the peace answerable for his acts, there is evidence of a general feeling among the people that the office was not sufficiently close to the democracy. At intervals from 1800 to the close of the ante-bellum period, and especially during the last decade, petitions and bills appeared in the Legislature asking that the office be made elective. Some wanted the justice elected by the captains' companies of the militia; others, by taxpayers entitled to vote for members of the House of Commons. 41

[41 See, for example, MSS in Legislative Papers, 1800; 1809; 1840; in Senate, December 30, 1846; in Senate, January 20, 1851; in Senate, January 24, 1855; in Senate, January 22, 1859; in House, December 3, 1860; and see Raleigh Register, October 28, 1842; Star, July 10, 1850.]

The Constitution of 1868 provided for the biennial election of justices of the peace to constitute boards of county trustees and until 1875 these justices exercised administrative powers in the townships. The Consolidated Statutes, section 1463, now provides for the biennial election of three justices of the peace in each township, but the governor and also the Legislature may appoint justices for the various counties.

Among the reformers, there was a desire not only to enlarge the jurisdiction of the justice's courts, as has already been pointed out, but also to make the court one of record and to remunerate the justice for his work. ". . . I believe no Sett of Men in the United States perform without procuring reward such important services as the Justices of the Peace of No. Carolina," wrote a justice in resigning his office in 1832. The justice of the peace was forbidden to accept any fees. Even in the case of performing the rites of matrimony he could not charge, like the minister, $2 for his services. It was not until 1848 that an act was obtained exempting justices from road duty, although a bill with that purpose in view failed by only a few votes in the Legislature of 1844-1845. 42

[42 MS in Legislative Papers: engrossed in House, January 3, 1845; tabled on third reading in Senate, January 7.]

Despite the general opinion that men desirous of climbing politically and socially sought the office of justice of the peace, the numerous resignations which the governor received every year

Page 631

show that the position was not always a desirable one. In 1858, for example, the governor transmitted 302 resignations to the General Assembly. 43

[43 Ibid., Letters from the Executive, December 24, 1858.]

In his letter of resignation in 1845, James Hall of Burke County wrote, "The Honor of being called Squire is not quite sufficient to compensate me for the time I loose [sic] in attending to the business of the Public besides I find there are various other little contingent expenses to defray and various duties to perform which I wish to be exempt from." 44

[44 Ibid., letter dated January 15, 1845.]

REFORM IN THE COUNTY COURTS

Since the same men who sat on the magistrate's bench might also sit on the bench of the county court, the same criticisms were also aimed at this court. If the justices of the peace were, separately, "boobies," "inefficient," "men who received office as rewards for electioneering or for a purchase price," so also were they when they sat collectively as a county court. Most of the petitions and bills concerning reform in the county courts which appeared before the General Assembly between 1800 and 1860 sought to create a fixed executive for the court. For instance, a bill in 1804 proposed to establish a "quorum of three justices," appointed by the Legislature, which should sit as the county court. In 1808 the House of Commons instructed its Judiciary Committee to inquire into the expediency of creating such a quorum and a bill of 1809 called for the popular election of seven justices who should constitute the county court. In 1818, the same year that Gaston wrote his Supreme Court bill, he reported unfavorably as chairman of the Judiciary Committee on "the expediency of appointing five respectable men in each county to hold the courts of pleas and quarter sessions during good behavior and to receive a per diem compensation for their services." 45

[45 Senate Journal, December 5, 1818, p. 122.]

In the last decade of the period, the bills calling for reform looked toward the election or appointment of a single judge. A bill of 1850 called for the election of a judge by the people and a bill of 1852 for the election of a judge by a majority of the justices of the peace.

It was frequently complained that the county court justices monopolized all the minor appointive offices within their power. Before the passage of the act of 1808 forbidding justices of the

Page 632

peace to hold the offices of clerk or deputy clerk of the county court, sheriff or deputy sheriff, constable or county trustee, 46

[46 This act also forbade a justice's practicing as an attorney in the court of pleas and quarter sessions of his county.]

and before the passage of the act of 1809 forbidding them the office of jailor, numerous petitions complained of multiple officeholding on the part of justices. Other attempts were made to prevent a justice of the peace's acting also as a coroner, entry taker, and surveyor, but the Legislature refused to place any further disabilities upon the office.

In an attempt to reform the practice and procedure in the county courts, numerous petitions complained of the carelessness with which the courts kept their records. They complained that a clerk or a single justice performed privately administrative business that the law required to be done in open court, that it was difficult to get a chairman to serve throughout a single term of court, and that it was almost impossible to get a majority of justices present. When the Legislature steadfastly refused to make any important change in the county court system, various counties sought relief by obtaining special acts permitting deviation from the general law. In 1826, for example, Davidson County obtained a law permitting eleven justices to perform all the powers previously exercised by a majority, and in 1828 Nash County obtained a law permitting the same number of justices which composed a special court to perform all the duties formerly delegated to a majority of justices except in certain appointments and in the laying of taxes. In Wayne County by act of 1830 and in Brunswick County by act of 1831 the justices present at any time might in all cases proceed to exercise the powers delegated to the majority. Numerous other counties also obtained special acts permitting modifications of the general law. 47

[47 See Cantwell, The Practice of Law in North Carolina, p. 20, n. 2.]

A few counties, among them, Robeson, Brunswick, Moore, Burke, Yancey, Cleveland, Henderson, Buncombe, Gaston, Lincoln, Polk, Cherokee, and Macon, obtained acts forbidding their county courts to hold jury trials. The case of Robeson County is especially interesting. The county obtained this reform in 1820, to the general satisfaction of everyone except "persons at or near the Court house." About twenty years later the opposition was strong enough to call for a popular vote on the subject and the question

Page 633

of restoring jury trials was defeated by a majority of more than six hundred. In 1856, however, the opposition obtained a law from the Legislature giving the county court justices power to grant or withhold trial by jury at their pleasure, and, when the court next met, the justices voted to restore jury trials. "The indignation of the people was immense!" declared a petition to the Legislature of 1860 from 142 outraged Robeson County citizens. "We cannot understand the policy of allotting Legislative power to twenty or thirty individuals of a County, thereby establishing an odious Oligarchy. . . . We would think it more consistent with justice & propriety to vest it in the people from whom it was originally derived." 48

[48 MS in Legislative Papers, dated December 31, 1860. The Legislature did not grant the prayer of the petitioners.]

Some counties quickly resumed jury trials after having abolished them. Between 1850 and 1860 Yancey, Henderson, Burke, Robeson, Cleveland, Gaston, Lincoln, Polk, and Cherokee counties resumed jury trials in their county courts, some of the counties making the restoration optional by a vote of a majority of justices.

In 1845 when an eminent jurist of North Carolina reviewed the court system of the State, he found the greatest need for reform in the county courts. "It must be obvious to any observer," he wrote, "that this Court, from its constitution, is extremely ill adapted to administer the law. . . . Long since, we believe, would it have been altogether divested of powers so little appropriate, but for the unfortunate indifference of public men in general to any measure unconnected with party politics, and the unworthy dread of risking popularity with the vulgar by innovations, however wise." 49

[49 "The Administration of Justice in North Carolina," North Carolina Standard, September 17, 1845. Cf. Robert Strange, Eoneguski, pp. 197-202.]

To be sure, there were competent justices in every county, but they would "seldom submit to sit in the courts." One brilliant exception to this observation was Chief Justice Ruffin who sat as chairman of the Alamance County Court after his resignation from the Supreme Court.

"Justices are perpetually going on and off the bench," wrote the critic of the courts in 1845, "and it often happens that the Court is wholly changed several times during the progress of a trial. This would be incredible to strangers. We think no parallel can be found in the institutions of any country professing to administer

What happened in actual practice was that justices stepped into court occasionally from their pursuits, stayed a while, and then left to resume their business, returning as curiosity or interest drew them back. A. S. Merrimon, practicing law in the county courts in 1854 wrote, "A County court is more influenced by their own wishes, most generally, than by what is really their duty. It is not well therefore, for a litigant to get his suit into this Court." Of the January term of Yancey County Court he wrote in particular, "There is during the Session of the court a continual fuss, a continual talking, so that the Court, the Council nor the jury cannot hear the testimony. . . . A portion of the Court has been drunk all day. How shameful! A portion of the time, while suits were trying the whole court were off the bench." 51

It happened, accordingly, that the county courts were presided over by (1) judges without any knowledge of the law they administered, (2) judges receiving little or no compensation 52

[52 Revised Code, 1855, Chap. XXXI, sec. 6. Since 1749 county court judges had been entitled to a small per diem varying from $1 to $3.]

and therefore without a compelling motive to discharge their duty, (3) judges constantly varying in number and personnel, producing in consequence a practice devoid of consistency, (4) judges solicited by suitors to try particular cases. 53

[53 Cf. "The Administration of Justice in North Carolina," North Carolina Standard, September 24, 1845.]

In extenuation of these evils, it must be pointed out that the county court in practice did not instruct the jury on the law of the case arising from the facts, but left the whole question of fact and law to the jury and that an appeal might be had to the superior court from every final judgment of a county court. Ante-bellum critics, however, did not consider these antidotes sufficient to balance the evils of the county system. In the first place, that juries should decide on the law was contrary to the spirit of the common law and likely to give rise to "a capricious and arbitrary uncertainty." The right of appeal, in the second place, corrected in a very bungling way some evils and introduced others, for no party could obtain an appeal without first giving surety to satisfy the ultimate judgment. Thus a poor man,

Page 635

particularly if a defendant, was in effect deprived of an appeal and forced to submit to a decision which was often wrong. 54

[54 Ibid.]

The reforms which the eminent jurist advocated through the columns of the North Carolina Standard in 1845 were as follows: (1) the annual election of justices of the peace "by the people of the several captain's districts" of the militia, (2) "a reasonable compensation," (3) the continuation and enlargement of the administrative powers of the county court, (4) removal of all judicial powers from the county court except as a court of probate. 55

[55 October 1.]

In 1820 Governor Branch had pointed out "the confusion apparent in our county courts, in consequence of what is technically called county business clashing with the regular jury trials" and had called for a separation of those duties and powers by the creation of a special court for the transaction of county business. 56

[56 House Journal, November 22, 1820, p. 9.]

The Legislature ignored the suggestion, but various counties, as it has already been pointed out, adapted it to their needs by depriving their courts of jury trials. Again in 1846 Governor Graham suggested that all jurisdiction of pleas in the county courts might be abolished with advantage and "those Courts be permitted to remain only for purposes of Probate and County Police, with a session of but a single day in each month." 57

A bill to put Governor Graham's suggestion into effect failed as did similar bills in 1856 and in 1858. Some would go a step further and abolish the county courts entirely. Such a bill appeared in the Legislature as early as 1812. 58

[58 House Journal, December 24, 1812, p. 52.]

In 1854 A. S. Merrimon, then a young lawyer, wrote, "The more I see of the County Courts, the more I wish to see them abolished." 59

[59 Newsome, "The A. S. Merrimon Journal," NCHR, VIII, 329.]

He saw this wish realized in the Constitution of 1868 which created a board of county commissioners with power to exercise most of the administrative functions formerly within the jurisdiction of the county court. The Constitution conferred the general administrative powers such as probating wills and appointing guardians, formerly exercised by the county courts, upon clerks of the superior courts and divided the judicial powers of the county court between the magistrate's court and the superior court. It was not until 1923 that the Legislature again authorized a county court

Page 636

but the court has none of the administrative powers exercised by the county court of the ante-bellum period. It is simply a court subordinate to the superior court.

THE SUPERIOR COURT AND REFORM

The greatest reform in the superior court system came in 1806 with the creation of a superior court for each county in the State. Before that time, the reformers called the system "a wretched, decrepit one that has for many years been about to fall." 60

[60 Raleigh Register, July 21, 1805.]

The public mind having been agitated, the Legislature in 1806 passed the bill which had been proposed the previous year. But many of the lawyers and judges opposed the system from the first and Governor Alexander called for a repeal of the act in 1807: "The change that was effected by the last Legislature, in our Judiciary System, has produced a scene of confusion never before witnessed; such a clashing of courts, posting of judges, lawyers, clients and witnesses, as to prevent all regular proceedings." He thought the counties not populous enough to furnish sufficient jurors and declared that if six additional judges were appointed their work would still be too arduous. "It is cruel and oppressive to compel your judges to travel through ten counties, in ten successive weeks, twice in the year, and perhaps travel two or three hundred miles before they enter upon their judicial career." 61

[61 House Journal, November 18, 1807, p. 6.]

Later movements for reform were largely aimed at decreasing the size of the superior court circuits and increasing the salaries of the judges. The few additional superior courts which were created after 1806 by the erection of new counties were added to some one of the existing six districts until the act of 1836 which redistricted the State into seven circuits and added an additional judge and an additional circuit. When Judge Francis Locke resigned his position in 1814, he declared that the "degree of fatigue and labor . . . and with the labor a great increase of expenses" imposed by succeeding Legislatures upon superior court judges had become insupportable. 62

[62 MS in Legislative Papers, 1814, dated December 7, 1814.]

In 1815 Governor Miller declared that the poor pay of the superior court judges produced an able bar and a weak bench, creating a situation in which "justice must necessarily, and

In 1818 William Gaston, reporting his bill to create a Supreme Court, said, "The Judges of the Superior Courts, as circuit judges, travel from a thousand to fifteen hundred miles, are absent from home twenty two weeks in the year. Their heavy expenses and insufficient salaries compell them during the residue of the year, to apply themselves to other pursuits which aid in the support of their families." 64

[64 Senate Journal, November 26, 1818, p. 118.]

The act of 1818 creating the Supreme Court greatly relieved the work of the superior court judges, but did little toward increasing their salaries. In 1786 the Legislature had fixed the salary of superior court judges at £50 a court and so it continued despite the great increase of duties until 1808 when it was reduced to £40 a court with $100 added for attending the Supreme Court. The act of 1818, while fixing the salary of Supreme Court judges at $2,500, higher by $500 than the salary of the governor, gave only $90 a court to superior court judges. The Legislature of 1836 somewhat improved the situation of the judges by giving them a fixed salary of $1,950, and so the salary remained until the Revised Code of 1855 allowed superior court judges an additional $90 per court when a circuit had more than twelve courts.

Even after the creation of a separate body of judges for the Supreme Court, the superior court judges were still overworked. In 1819 Governor Branch, commenting upon Judge John D. Toomer's resignation, pointed out "the Herculean tasks," the "extraordinary labors and privations and exposures to which our Superior Court Judges are subjected" and asked the Legislature for relief. 65

[65 House Journal, December 18, 1819, p. 81.]

An act of 1821 sought to relieve the overcrowded dockets of superior courts in which "suits . . . have so accumulated" by providing extra terms of court and a similar act of 1824 sought the same object, adding as a bait to the Legislature, "extending relief . . . without any increase of salary to the Judges holding said Courts." 66

In 1825 the Senate Judiciary Committee pointed out "the great press of business in most of our Courts of law, the short time allowed for holding the said Courts, the extent of the circuits, and consequent labor devolving on the Judges." 67

[67 MS in Legislative Papers, in Senate, December 29, 1825.]

The

Page 638

act of 1836 creating an additional circuit and adding another judge and the act of 1844 permitting a judge to announce a special term of court when the civil business on the docket became too pressing somewhat relieved the congested dockets. In 1846, however, Governor Graham was still longing for the time when "all Law suits could be ended in one, or at most two years from their commencement, instead of being, as they often are, transmitted from father to son." 68

As in the case of justices of the peace, sheriffs, clerks of court, and other minor offices, a movement was begun for limiting the tenure of office and providing for the popular election of judges of the superior courts. A bill before the Senate in 1830 proposed to limit the appointment of judges to a four-year term and in 1851 a bill called for the election of Supreme Court and superior court judges every eight years. 69

[69 MS in Legislative Papers, in Senate, December 20, 1830, and January 20, 1851.]

It was chiefly in connection with the civil side of the docket that the superior courts became clogged. The courts sometimes continued the same suit year after year until it actually happened, as Governor Graham declared in 1846, that cases were handed down from father to son. The act of 1782 creating courts of equity in no way relieved the superior courts, for it merely gave the judges powers in equity as well as in law. Thus it happened that James Barnes of Gates County in 1807 might truthfully describe the equity court of his county as an "extraordinary whirlpool . . . which has nearly been my ruin." The suit began in 1783 and after twenty-four years had not yet been settled. During that time, Barnes had employed five different attorneys, some of the earlier ones having died; the master in equity had lost the papers for a period of two years; the bill had been amended; a decree had been obtained in 1801; but now he seemed inextricably "hung up, as they call it, by a Plea." During the continuance of this suit, Barnes wrote, "I have been a slave in attendance on the court, and were it not for providential circumstances in other respects, I should by this time have been beggared." 70

[70 Raleigh Register, November 26, 1807.]

In 1810 Governor Stone suggested a change in the disposition of equity suits 71

[71 House Journal, November 21, 1810, p. 5.]

and in 1811 "A Constituent," in an able article,

Page 639

outlined the history of equity courts in the State and pointed out the urgent need for reform. Under the act of 1792 setting aside the last three days of a superior court term for cases in equity, this side of the docket had some chance of settling a few minor cases each term; but under the act of 1806 the superior court judges seldom had time for more than a day of equity cases. "Some of our equity dockets contain from 25 to 60 or 70 causes untried," wrote "A Constituent," "Among which there are not a few, each of which would require one whole week for a full and thorough discussion. . . . Many less intricate suits will require near half the time for a full investigation. These are generally of vast importance to those concerned. Some of them have been pending nearly an age. A portion of them have out-lived the parties originally concerned, and have descended as an inheritance to their off-spring, who are doomed to be the heirs of perpetual litigation. These delays are often ruinous. The party driven here, often requires the most urgent relief, his all is wrested from him by imposition and fraud, he has to remain in want for a quarter of a century to come, waiting the tedious event of a decision, or abandon the suit and reconcile himself to the loss." 72

[72 Star, September 6, 1811.]

The act of 1818 creating the Supreme Court also gave tremendous relief to the equity docket of the superior courts, for one section of the act provided that a case, after having been set for hearing might be removed to the Supreme Court on sufficient cause being shown by affidavit. Only one year after the creation of the Supreme Court, William Gaston reported to the Senate, ". . . the court is ready to receive those weighty and numerous equity suits, which have for so many years slept unheard on the dockets of the courts in the west. . . . Sufficiently long have the parties been mocked with a promise of hearing. In this court they will be heard, and it is in this court only that they can obtain this boon." 73

[73 Senate Journal, December 20, 1819, p. 115.]

It was in connection with the trial of such suits that the Supreme Court, especially under the guidance of Chief Justice Ruffin, rendered a valuable service in clarifying rules of equity 74

[74 Papers of Thomas Ruffin, I, 27-28; Clark, "The Supreme Court of North Carolina," The Green Bag, IV, 472. Judge Clark states that during Ruffin's service on the bench "two notable departures were made from the English precedents in equity: (1) Adhering to the Statute of Frauds, and refusing to decree specific performance of verbal contract of sale of land upon part performance; (2) Discarding the doctrine of vendor's lien upon land sold on credit."]

in the

Page 640

State. But the equity dockets continued to be clogged with minor cases too insignificant to be taken to the Supreme Court.

Until the provision of 1818 giving the Supreme Court jurisdiction in certain cases, the Legislature considered almost yearly from 1803 bills calling for the establishment of equity, or chancery, courts separate from the law courts. Even after 1818, bills appeared seeking to establish separate chancery courts. A bill of 1825 would have created a chancery court presided over by the Supreme Court judges. 75

[75 MS in Legislative Papers, November 28, 1825.]

The Constitution of 1868 declared that "the distinctions between actions at law and suits in equity, and the forms of all such actions and suits, shall be abolished; and there shall be in this State but one form of action . . . a civil action." This provision did not destroy equitable rights and remedies but declared that all suits formerly brought at equity should now be brought as actions at law. 76

[76 Connor and Cheshire, op. cit., pp. 146-47.]

The jurist advocating reform in the judiciary system of North Carolina pointed out in 1845 that the superior courts of law and equity did not have the three requisite qualities of a perfect system: certainty, speed, and cheapness. Aside from defects arising from the system itself, this critic of the courts would point to defects in the practice of the court. Although the statutes of the State provided for a rigid system of pleading, the system actually followed in the courts was extremely loose and careless.

The statute prescribes when declarations and pleas shall be filed and demurrer argued, and that an "entire and perfect record" of the proceedings in each suit shall be made. The truth is, we have never possessed but its most attenuated shadow. 77

[77 William Eaton, Book of Practical Forms, p. vi: ". . . it is notorious that, according to an understanding among members of the bar in the County and Superior Courts, regular pleadings are rarely filed, the writ generally standing in the place of writ and declaration, and a mere memorandum of the grounds of the defence answering the purpose of formal pleas."]

We have neither allegation of the plaintiff nor response of the defendant. The one does not know before trial what he is sued for, nor the other what defence is set up to his demand. All the witnesses are summoned that can possibly in any event be wanted, and every point going to make up a case or defence is labored before the jury with as much copiousness as if

Page 641

that were the sole point in controversy between the parties. The result is a monstrous accumulation of unnecessary witnesses at enormous cost; repeated continuances and delays; constant surprise at trials, and consequent dissatisfaction; and frequent irreparable error and injustice. The attention of the Court and jury being spread over a vast surface of facts, it is impossible that they should within the brief time allowed for deliberation accurately separate those which are of the essence of the case from those which are entirely irrevelant or merely in aggravation or extenuation, and adequately weigh their respective importance and draw the proper inferences from each. 78

[78 "The Administration of Justice in North Carolina," North Carolina Standard, October 1, 1845.]

The result of this loose method of pleading and of the failure of the courts to insist upon complete records being filed was that law and fact became inextricably blended so that the jury necessarily decided, as in the county courts, both upon the law and upon the facts and thus usurped the functions of the court. Another effect of the failure of the parties to file record was to deprive the litigants almost entirely of a most important right provided by statute, the right to a writ of error for error in the record. Without a record there could, of course, be no apparent error. The loose system of pleading, moreover, made litigation a monstrous and unreasonable cost not only because of the delays which it produced through the ease of making false pleas, but also because of the great number of witnesses that it necessitated. "It is the vast crowd of witnesses, unnecessary under any other system, which renders law in North Carolina either a luxury for epicures, or a covered abyss to swallow up suitors for justice."

Thus, the jurist, advocating reform in the North Carolina Standard, declared that the practice prevailing in North Carolina in these respects was "utterly unexampled elsewhere." "And it cannot fail, on consideration, to strike every one with astonishment how we have been able to get along for a century under a system compared with which the rudest and most aboriginal form of settling disputes, arbitration by neighbors, is vastly superior." 79

[79 Ibid.]

He advocated, therefore, the following reforms: (1) the adoption of a system of pleading, simple and concise, and as free as possible from technicalities; (2) a compulsory statute, if necessary, requiring that a record of demand and response be filed with the

Page 642

court; (3) complete indemnity to the successful party as allowed by the English reforms; 80

[80 The English law gave a complete indemnity and repaid a party who had suffered injury all his necessary expenses in obtaining redress. The North Carolina law awarded "all costs" to the successful party, but in fact it gave only those costs which were fixed by statute. Thus the successful party had to pay fees to counsel for an opinion, for conducting the cause in court, for attending the taking of depositions, and other expenses of a like nature, and this seems still to be the law today. Attorneys' fees as a rule are not counted as part of the costs.]

(4) an increase in the frequency of superior court terms and a corresponding increase in the number of judges. 81

[81 North Carolina Standard, October 8, 1845.]

In 1846 Governor Graham urged upon the Legislature the adoption of three superior court terms a year with an increase in the number of judges, saying, "If all law suits could be ended in one, or at most, two years from their commencement, instead of being, . . . with costs far exceeding the value of the original subject of contest, it would be a reform of the greatest importance." 82

The Supreme Court remained throughout the ante-bellum period as established by the act of 1818 except for such minor changes as were provided by an act of 1822 giving the Court power to amend proceedings, an act of 1825 permitting the Court to allow the taking of further testimony, various acts further describing the duties of the clerk, an act of 1834 permitting two judges to hold court in case of sickness of the third, an act of 1842 providing for a term of court to be held at Morganton, and a few other acts in no way greatly affecting the structure of the Court. 83

[83 Revised Code, 1855, Chap. XXXIII.]

The Supreme Court, however, had its enemies, especially during the first ten years of its existence. But in 1824, when W. Alston introduced a resolution into the Legislature to abolish the Supreme Court, he found the public press about his heels. "A Plain Farmer," writing in the Catawba Journal of Charlotte, described the Alston resolution as "an extraordinary stretch of Legislative power" and dismissed the attempt to reduce the salaries of the judges as "a fantastic trick" of a man "with a little brief authority." 84

[84 December 14, 1824.]

If, as the Plain Farmer stated, the people of the State had come by 1825 to consider the Supreme Court "as the palladium of their safety, as the sacred repository of their lives, their liberty, and their property," they revered it even more in

Page 643

the nineteen years from 1833 to 1852 when Ruffin served as chief justice. Friends of the Supreme Court feared that Ruffin's resignation in 1852 would involve the Court in party politics, for in 1850 the Democratic party had declared in favor of the popular election of judges and the Whigs had suggested the subject as a matter for consideration. "I have no idea what the Legislature will now do with the Judiciary System of our State, but am satisfied that the fact of your being Chief Justice has heretofore been a check upon innovation," wrote James R. Dodge from Graham. "I am fearful that your resignation will open the door to all kinds of mischief." 85

[85 Papers of Thomas Ruffin, II, 35.]

Such fears were unworthy of the Legislature, for, voting "without distinction of party," the Legislature elected William H. Battle, a Whig, to take the place of Ruffin, a Democrat, although the two men left on the bench were also Whigs. 86

[86 Ibid., p. 361.]

In his letter of resignation Chief Justice Ruffin had warned the Legislature that the successful administration of justice rested upon an "independent and sound Judiciary." Commenting upon this fact, the Raleigh Register declared, ". . . the ability of the judiciary and the impartial and satisfactory administration of justice can exist only, while the Judges shall be independent of popular favors and popular sentiments, and shall be removed in the discharge of their duties from the insinuating influences of party." 87

[87 November 20, 1852; Papers of Thomas Ruffin, II, 348.]

It was left for the Constitution of 1868 to free the Supreme Court from its position as creature of the Legislature. The Constitution specifically determined the composition of the Court so that it was no longer possible, as it might have been during ante-bellum days, for the Legislature to abolish the Supreme Court. While securing the permanency of the Court, the Constitution also introduced a feature of which Chief Justice Ruffin had been fearful in 1852, the popular election of judges.

The administration of justice had been brought nearer to the people by the act of 1806 creating a superior court for every county in the State and by the act of 1818 establishing a Supreme Court presided over by a separate body of judges; but, even at the close of the period, court dockets were overcrowded and judicature was expensive and often uncertain. Simultaneous with the reform in the court system, there was underway a movement for reform in the penal code.